Gentlemen of the grand jury, to prevent crimes is the noblest
end and aim of criminal jurisprudence. To punish
them is one of the means necessary for the accomplishment
of this noble end and aim. The impunity of an offender
encourages him to repeat his offences. The witnesses
of his impunity are tempted to become his disciples
in his guilt. These considerations form the strongest--some
view them as the sole argument for the infliction of
punishments by human laws.

There are, in punishments, three qualities, which render
them the fit preventives of crimes. The first is their moderation.
The second is their speediness. The third is their
certainty.

We are told by some writers, that the number of crimes
is unquestionably diminished by the severity of punishments.
If we inspect the greatest part of the criminal
codes; their unwieldy bulk and their ensanguined hue will
force us to acknowledge, that this opinion may plead, in
its favour, a very high antiquity, and a very extensive reception.
On accurate and unbiassed examination, however,
it will appear to be an opinion unfounded and pernicious,
inconsistent with the principles of our nature, and, by a
necessary consequence, with those of wise and good government.

So far as any sentiment of generous sympathy is suffered,
by a merciless code, to remain among the citizens,
their abhorrence of crimes is, by the barbarous exhibitions
of human agony, sunk in their commiseration of criminals.
These barbarous exhibitions are productive of another
bad effect--a latent and gradual, but a powerful, because
a natural, aversion to the laws. Can laws, which are a natural
and a just object of aversion, receive a cheerful obedience,
or secure a regular and uniform execution? The
expectation is forbidden by some of the strongest principles
in the human frame. Such laws, while they excite the
compassion of society for those who suffer, rouse its indignation
against those who are active in the steps preparatory
to their sufferings.

We may easily conjecture the result of those combined
emotions, operating vigorously in concert. The criminal
will, probably, be dismissed without prosecution by those
whom he has injured. If prosecuted and tried, the jury will
probably find, or think they find, some decent ground, on
which they may be justified, or at least excused, in giving
a verdict of acquittal. If convicted, the judges will, with
avidity, receive and support every, the nicest exception to
the proceedings against him; and, if all other things
should fail, will have recourse to the last expedient within
their reach for exempting him from rigorous punishment--that
of recommending him to the mercy of the pardoning
power. In this manner, the acerbity of punishment
deadens the execution of the law.

The criminal, pardoned, repeats the crime, under the
expectation that the impunity also will be repeated. The
habits of vice and depravity are gradually formed within
him. Those habits acquire, by exercise, continued accessions
of strength and inveteracy. In the progress of his
career, he is led to engage in some desperate attempt.
From one desperate attempt he boldly proceeds to another,
till, at last, he necessarily becomes the victim of that
preposterous rigour, which repeated impunity had taught
him to despise, because it had persuaded him that he
might always escape.

When, on the other hand, punishments are moderate
and mild, every one will, from a sense of interest and of
duty, take his proper part in detecting, in exposing, in
trying, and in passing sentence on crimes. The consequence
will be, that criminals will seldom elude the vigilance,
or baffle the energy, of publick justice.

True it is, that, on some emergencies, excesses of a temporary
nature may receive a sudden check from rigorous
penalties: but their continuance and their frequency introduce
and diffuse a hardened insensibility among the citizens;
and this insensibility, in its turn, gives occasion or
pretence to the farther extension and multiplication of
those penalties. Thus one degree of severity opens and
smooths the way for another, till, at length, under the specious
appearance of necessary justice, a system of cruelty
is established by law.

Such a system is calculated to eradicate all the manly
sentiments of the soul, and to substitute, in their place,
dispositions of the most depraved and degrading kind. It
is the parent of pusillanimity. A nation broke to cruel punishments
becomes dastardly and contemptible. For, in nations,
as well as individuals, cruelty is always attended by
cowardice. It is the parent of slavery. In every government,
we find the genius of freedom depressed in proportion to
the sanguinary spirit of the laws. It is hostile to the
prosperity of nations, as well as to the dignity and virtue
of men.